Summary of Ombudsman Call on H-1B Amendments for Work Location Changes

In our last newsletter, we wrote about a recent precedent AAO Decision “Matter of Simeio Solutions, LLC” that requires employers to file H-1B amendments for all worker location changes. This week, the USCIS Ombudsman held a call to explain USCIS implementation of the AAO decision. The following is a summary.

• According to a 2003 Hernandez memo, a work location change was not considered a ‘material change,’ and thus filing an H-1B amendment with the USCIS was not necessary. Employers only had to file a Labor Condition Application with the Department of Labor and have it certified prior to the change in work location.
• However, after the recent AAO decision, not only is a new LCA required, but an H-1B amendment is required as well for all work location changes.
• Going forward, the Hernandez Memo is not in effect and all future work location changes require an H-1B amendment.
• If possible, always file the H-1B amendment with USCIS before the worker changes work locations.
• This will result in a large number of additional H-1B applications, which could slow down regular H-1B processing times.

Obviously, this will have a significant impact on all staffing companies, especially those focused on information technology. We strongly recommend that all companies contact their immigration counsel to determine the appropriate compliance strategy moving forward.